Date: 20050310
Docket: A-232-04
Citation: 2005 FCA 95
CORAM: NOËL J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
WINCHESTER DIVISION - OLIN CORPORATION
Applicant
and
THE MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES
Respondent
and
REMINGTON ARMS COMPANY, INC. and
LES AGENCES MICHEL GRAVEL INC.
Interveners
Heard at Toronto, Ontario, on March 10, 2005.
Judgment delivered from the Bench at Toronto, Ontario, on March 10, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20050310
Docket: A-232-04
Citation: 2005 FCA 95
CORAM: NOËL J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
WINCHESTER DIVISION - OLIN CORPORATION
Applicant
and
THE MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES
Respondent
and
REMINGTON ARMS COMPANY, INC. and
LES AGENCES MICHEL GRAVEL INC.
Interveners
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on March 10, 2005)
SEXTON J.A.
[1] The department of Public Works and Government Services Canada (PWGSC) issued a Notice of Proposed Procurement and Request for Proposals (RFP) with respect to procurement of ammunition for use by the RCMP.
[2] The RFP specified that:
"Delivery is preferred as soon as possible. Bidders are required to specify their proposed delivery date in the Delivery Offered column of Appendix D."
[3] The applicant submitted a proposal which failed to indicate a specific proposed delivery date but rather indicated that delivery would be contingent upon approvals required from relevant Canadian and U.S. authorities.
[4] In response to a request for clarification about the delivery dates, by PWGSC, the applicant reiterated that its ability to supply was conditional upon obtaining the requisite government approvals.
[5] PWGSC informed the applicant that its proposal was unacceptable because of the condition relating to obtaining approvals which would affect the delivery dates.
[6] PWGSC awarded the contract to the intervener who had provided specific delivery dates in its proposal with no conditions attached.
[7] The applicant filed a complaint with Canadian International Trade Tribunal (CITT) which was dismissed on the basis that it was mandatory for all bidders to stipulate a firm delivery date in their proposal and that the applicant had failed to do so.
[8] The applicant argued before this Court that the RFP did not specify as a mandatory requirement, that a specific date be provided.
[9] The CITT found that it was mandatory to provide a specific date for delivery. It based its decision on the following clauses in the RFP:
To be considered responsive, a bid must meet all of the following mandatory requirements of this solicitation:
...
7. Compliance with all other clauses, Terms and Conditions stipulated in the RFP.
...
Delivery is preferred as soon as possible. Bidders are required to specify this proposed delivery date in the Delivery Offered Column of Appendix "D".
[10] The standard of review of CITT decisions within its jurisdiction is patent unreasonableness. Canada (Attorney General) v. McNally Construction Inc. 2002 FCA 184, Siemens Westinghouse Inc. v. Canada (Minister of Public Works and Government Services) (C.A.) 2001 FCA 241.
[11] We agree with the conclusion of the CITT and see no merit in the applicant's argument that the provision of a specific date in proposals was not mandatory.
[12] The applicant further argued that PWGSC was in error in suggesting that the applicant's proposal was contingent and therefore not binding and that if the applicant had been given an opportunity to explain its position it could have satisfied PWGSC that the contract was binding.
[13] The issue of whether the contract was binding in a legal question, the answer to which is not clear. The applicant takes the position that PWGSC was obligated to obtain legal advice on this issue and then act accordingly. The problem with this is, that without a decision by a Court, the question of whether the contract was binding was an arguable question in light of the contingency specified by the applicant.
[14] We do not believe there was an obligation on PWGSC to take the risk that the contract was binding. It was the applicant which set up this problem, a problem not set up by the winning bidder. The applicant obviously close to place the risk on PWGSC rather than take the risk itself by omitting the contingency.
[15] The applicant further argued that the RFP itself provided for relief to the provider when there was impossibility of performance, and therefore the condition, which it inserted, did not make the offer contingent. In effect, it was said, the applicant's condition changed nothing. If it changed nothing, one wonders why the applicant inserted it. In any event, the PWGSC was not obligated to consider the legal issue as to whether the condition intended by the applicant was broader then the condition contained in the RFP. What is clear is that the applicant apparently felt it necessary to insist on this condition and ask PWGSC to take the risk, if any, imposed by this condition.
[16] For the reasons set forth above, this application for judicial review will be dismissed with costs to the respondent.
"J.E. Sexton"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-232-04
STYLE OF CAUSE: WINCHESTER DIVISION - OLIN CORPORATION
Applicant
and
THE MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES
Respondent
and
REMINGTON ARMS COMPANY, INC. and
LES AGENCES MICHEL GRAVEL INC.
Interveners
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 10, 2005
REASONS FOR JUDGMENT
OF THE COURT BY: (NOËL J.A., SEXTON J.A., EVANS J.A.)
DELIVERED FROM THE
BENCH BY: SEXTON J.A.
APPEARANCES:
Riyaz Dattu FOR THE APPLICANT
Derek Rasmussen FOR THE RESPONDENT
Margaret R. Sims FOR THE INTERVENERS
SOLICITORS OF RECORD:
McCarthy Tétrault, LLP
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
Miller Thomson, LLP
Toronto, Ontario FOR THE INTERVENERS
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